Uhl, Frederick v. Thoroughbred Tech

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3572
FREDERICK A. UHL and TIMOTHY ELZINGA,
ON BEHALF OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs-Appellees,
v.
THOROUGHBRED TECHNOLOGY AND
TELECOMMUNICATIONS, INC.,
Defendant-Appellee,
CATHY MASON,
Intervenor/Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IPOO-1232-C B/S—Sarah Evans Barker, Judge.
____________
ARGUED APRIL 3, 2002—DECIDED OCTOBER 29, 2002
____________
Before COFFEY, DIANE P. WOOD and WILLIAMS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. This litigation arose
after Thoroughbred Technology & Telecommunications, Inc.
(T-Cubed) announced that it had the right to install con-
duits for fiber optic cables along railroad right-of-way
corridors. Timothy Elzinga, a property owner along a right-
of-way owned by the Norfolk Southern Railway, disagreed.
2 No. 01-3572
In his view, such a use by T-Cubed without the permission
of the adjacent landowners would amount to a slander of
their title and a trespass. Discussions took place between
Elzinga and T-Cubed, which eventually bore fruit in the
form of a proposed class-wide settlement. This proposed
settlement presumed that Elzinga would be certified as
the representative of the putative class. With this much
accomplished, Elzinga then filed suit and simultane-
ously sought certification of a settlement class, consisting
of all the persons who owned real estate on either side
of the railroad tracks along the route T-Cubed proposed
to use for its cable.
One particular complication figures significantly in this
appeal. At any given point, T-Cubed will lay fiber optic
cable on only one side of the tracks. Ex ante, it is impos-
sible to know which side that will be; detailed engineer-
ing surveys and technical criteria will govern the com-
pany’s final choice. The settlement agreement attempts
to deal with this uncertainty by dividing the class mem-
bers into two categories: the Cable Side and the Non-
Cable Side. (It does not address separately the possibility
that one landowner might own land on both sides of the
track; presumably such a person falls within both sub-
groups.) Under the terms of the agreement, the two
groups will receive different forms of compensation. All
class members, however, will become shareholders in
Class Corridor, LLC (Class Corridor), a newly created lim-
ited liability company.
The appellant in this case, Cathy Mason, is an unnamed
class member who claims that the settlement is unfair,
and more formally, that it fails to satisfy the require-
ments of FED. R. CIV. P. 23(a) and (b). (While a dispute
remains as to whether Mason will be entitled to any
benefits under the settlement agreement, the fact that
she is claiming that she should receive something is
enough to ensure that she has standing to intervene.) The
No. 01-3572 3
district court granted Mason’s motion to intervene, but
it then overruled her objections and approved both the
certification of the settlement class and the settlement
agreement itself. We affirm.
I
The class Elzinga represents has approximately 58,000
members. They all own property along several thousand
miles of railroad track.1 Although some class members
own their property in fee simple absolute, in most in-
stances, the property immediately adjacent to the track
is subject to an easement or right-of-way owned by Nor-
folk Southern Corporation (Norfolk Southern). Regard-
less, all parties admit that in many cases, title to the prop-
erties will be difficult to prove.
1
The formal definition of the class reads as follows:
All persons or entities owning land that is under or adja-
cent to railroad corridors used by Norfolk Southern Railway
Company, certain of its subsidiaries and Pennsylvania
Lines LLC on the following ten point-to-point corridors
(the “Settlement Corridors”) on which T-Cubed plans to
install telecommunications conduit and/or fiber optic cable:
A. Atlanta, GA - Jacksonville, FL 362 miles
B. Atlanta, GA - Chattanooga, TN 170 miles
C. Chattanooga, TN - Cincinnati, OH 190 miles
D. Chattanooga, TN - Memphis, TN 299 miles
E. Cincinnati, OH - Bellevue, OH 263 miles
F. Detroit, MI - Toledo, OH 57 miles
G. Atlanta, GA - Charlotte, NC 220 miles
H. Chicago, IL - Harrisburg, PA 719 miles
I. Harrisburg, PA - Alexandria, VA 169 miles
J. Cleveland, OH - Erie, PA 73 miles
4 No. 01-3572
Norfolk Southern granted to T-Cubed, its subsidiary, the
right to lay fiber optic cable in the corridors along the
railway easements. T-Cubed then announced its inten-
tion to install its cables in those corridors so that it
could then market network services to communications
providers. Elzinga’s complaint alleged slander of title
(arising from T-Cubed’s claim that it has a property inter-
est along the railroad right-of-way) and actual or threat-
ened trespass (arising from T-Cubed’s surveying of the
property and its planned installment of conduits). On be-
half of himself and the proposed class, he requested de-
claratory relief proclaiming the owners’ interest in the
land and injunctive relief prohibiting T-Cubed from tak-
ing further unlawful action.
Before we proceed to the details of the settlement agree-
ment, we must first address the composition of the class
the district court agreed to certify. The two groups
within the class, the Cable Side and the Non-Cable Side,
are determined by the eventual use of the side of the
track on which the class members’ property resides
(which is a significant issue for those who do not own the
property on both sides of a given section of track). As we
noted above, this distinction is important because T-Cubed
will lay its cables on only one side of the railroad track.
Furthermore, T-Cubed has refused to identify which prop-
erties would be Cable Side and which would be Non-Cable
Side, because it claimed that there was no way it could
know until after it had entered the land and surveyed
it (and thus committed the trespass the complaint was
in part trying to prevent). As a result, class representa-
tive Elzinga had to agree to the settlement before know-
ing on which side of the tracks his own property fell. This
“veil of uncertainty” exists as well for Mason; although
she objects that the settlement agreement is not fair,
she does not know whether she will be in the Cable Side
or Non-Cable Side group.
No. 01-3572 5
Under the settlement approved by the district court,
all class members, Cable Side and Non-Cable Side, will
abandon any claims against T-Cubed and transfer an
easement to T-Cubed for the specific purpose of laying
cable. In exchange for the easement, depending upon
whether they turn out to be Cable Side or Non-Cable
Side, the class members will receive varying compensation.
In keeping with the fact that the Cable Side class mem-
bers will have given up the most, they will receive the
most generous compensation. T-Cubed will pay each one
$6,000 per linear mile and a percentage of its reve-
nue from the sale, lease, and license of the conduits it
installs along the corridors. They will also receive owner-
ship interests in the new company, Class Corridor, de-
scribed below. The Non-Cable Side owners will not re-
ceive direct cash payments. They too, however, will receive
the same kind of ownership interests in Class Corridor,
and will benefit financially in their capacity as share-
holders.
The settlement agreement places Class Corridor at the
heart of the overall process. All class members (Cable
Side and Non-Cable Side), will transfer easements to
the new company. T-Cubed, for its part, must give Class
Corridor assets including dark optical fiber and an
option for Class Corridor to purchase a conduit from
T-Cubed. In addition, if T-Cubed leases or sells four or
more conduit systems to a telecommunications company,
T-Cubed will pay either $316 per fiber mile or up to 16
dark fibers to Class Corridor. T-Cubed will also transfer
non-cash telecommunication assets to Class Corridor,
permitting it either to own and manage a telecommun-
ications company or to take a specified sum of money.
Finally, Class Corridor will convey all Cable Side ease-
ments to T-Cubed once T-Cubed determines which side of
the corridor it will use for its cables. If T-Cubed fails to
install a telecommunication system along the railway,
6 No. 01-3572
the easements will terminate four years after the effec-
tive date of the approval of the settlement.
As noted above, class members will be entitled to share
in any revenues that Class Corridor may earn from the
telecommunication assets. They will own 100% of the
company at a rate of one membership share for each ten
linear feet of real estate owned by that class member,
along with apportioned voting rights. Shareholder dis-
tributions are within the discretion of the Class Corridor
Board of Directors and will be made as reasonably de-
termined.
Finally, class counsel will receive $2,000 per linear
mile for the first three conduits installed in the settle-
ment corridors, a percentage of T-Cubed’s gross receipts
with respect to the fourth and successive conduits, and
25% of certain revenues generated by Class Corridor or
the cash payment to which Non-Cable Side class mem-
bers are entitled from Class Corridor. This means that
class counsel will receive compensation of the same type
and at the same time as class members; as one expert
testified, class counsel can never receive compensation
that is more advantageous than that which goes to the
class members.
Mason acknowledges that Class Corridor has an upside,
in that it permits class members to participate in any
successes in the telecommunications market and to have
greater control over future uses of their property. She
points out, however, that there is also a downside. Most
importantly in her view, any future benefit the class
members may receive from Class Corridor is speculative.
Class Corridor may never be able to commence its in-
tended business, it might not be able to raise sufficient
financing to fund its operations, and it may experience
difficulties achieving profitability. As readers of the busi-
ness pages of the newspapers know all too well at this
No. 01-3572 7
point, the telecommunications market has been volatile.
This means that, insofar as their compensation is tied to
Class Corridor, the class members might do very well or
they might wind up empty-handed.
The district court was aware of these gloomier possibil-
ities. Despite that, the court approved the settlement
agreement. Overall, the court found it to be fair to all
parties, particularly in light of the potential weakness
of the plaintiffs’ individual cases and the risks for all
parties that accompanied delay. It also found that Elzinga
could adequately represent all the class members, future
Cable Side and Non-Cable Side, and certified the class
over Mason’s objections.
II
A. Jurisdictional Amount
Before proceeding to the merits we must first satisfy
ourselves that the $75,000 amount in controversy require-
ment of 28 U.S.C. § 1332(a) has been met. This amount
is determined by an evaluation of the controversy de-
scribed in the plaintiff’s complaint and the record as a
whole, as of the time the case was filed. Shaw v. Dow
Brands, Inc., 994 F.2d 364, 366 (7th Cir. 1993). It is obvious
that in conducting the required inquiry the court may
consider the value of any benefit the named representa-
tives may receive. In a case that seeks only money dam-
ages, the amount the defendant will lose is more or less
the same. But in a case like this one, for injunctive re-
lief, there may be an asymmetry. The question has thus
arisen whether it is proper in determining amount in
controversy to look in the alternative to the cost the
defendant will incur in complying with the injunction the
plaintiff seeks. In this circuit, the answer to the latter
question has been yes: it is established that the jurisdic-
tional amount should be assessed looking at either the
8 No. 01-3572
benefit to the plaintiff or the cost to the defendant of the
requested relief—the so-called “either viewpoint” rule. See,
e.g., In re Brand Name Prescription Drugs Antitrust Liti-
gation, 123 F.3d 599, 609 (7th Cir. 1997); McCarty v.
Amoco Pipeline Co., 595 F.2d 389, 391-95 (7th Cir. 1979).
Those cases specifically establish that the cost to a de-
fendant of complying with an injunction sought by the
plaintiff may properly be considered in determining the
amount in controversy. As the Ninth Circuit recognized
in In re Ford Motor Co./Citibank (South Dakota), N.A.,
264 F.3d 952, 958-59 (9th Cir. 2001), cert. granted under
the name Ford Motor Co. v. McCauley, 122 S. Ct. 1063
(2002) (No. 01-896), it may be more difficult to make
this assessment in the class action context. We too have
recognized that there are difficulties in that situation,
but we have chosen to resolve them by looking separately
at each named plaintiff’s claim and the cost to the defen-
dant of complying with an injunction directed to that
plaintiff. Brand Name Drugs, 123 F.3d at 610. In our
view, that ensures that we are not undermining the
nonaggregation rule that still applies to class actions
where the named plaintiff’s claim does not satisfy the
jurisdictional amount. The Ninth Circuit apparently re-
jected our approach in its Ford Motor Co. opinion. The
Supreme Court now has the case under advisement, and
we recognize that its decision may affect the rule we
have followed. Nonetheless, we see no reason to hold
this case for the decision in Ford Motor Co.; instead, we
respectfully choose to adhere to the Brand Name
Drugs approach. We are confident that the parties will be
able to preserve their rights to have any contrary Su-
preme Court ruling applied, should the Court find the
Ninth Circuit’s approach persuasive.
The reason it is necessary to consider this wrinkle of
jurisdictional doctrine stems from the fact that Elzinga
was unsure whether he was on Cable Side or Non-Cable
No. 01-3572 9
Side. This means that there is a serious question whether
his injury satisfied the jurisdictional amount. Standing
alone, the value of an easement on his property is prob-
ably insufficient: the relief he requested in his complaint
was primarily declaratory, and if he ends up being on the
Non-Cable Side, the trespass will be solely for the pur-
pose of surveying the land. Elzinga argues, however, that
under the “either viewpoint” rule, there is more than
$75,000 at stake with his individual claim (which is nec-
essary even under this court’s view of the scope of 28 U.S.C.
§ 1367 and Zahn v. International Paper Corp., 414 U.S.
291 (1973), see Stromberg Metal Works, Inc. v. Press
Mechanical, Inc., 77 F.3d 928, 930-33 (7th Cir. 1996)). He
asserts that it is unquestioned that T-Cubed would have
to spend more than $75,000 to avoid the costs of in-
junction and condemnation even if only his land was in-
volved. See McCarty, 595 F.2d at 395. Mason has offered
nothing to refute that factual assertion. We are satisfied,
looking at this case from T-Cubed’s viewpoint, that
the jurisdictional amount requirement of § 1332 is satis-
fied, Gottlieb v. Westin Hotel Co., 990 F.2d 323, 329-30
(7th Cir. 1993), and we therefore proceed to Mason’s next
challenge.
B. Justiciability
This one, which Mason raised at oral argument, also
goes to the court’s jurisdiction: she claims that the claims
of the class members are non-justiciable at this stage of
the proceedings. To resolve this justiciability argument,
we must look at how the class is defined. If, as Mason
argues, the class’s claims are future claims, largely hypo-
thetical at this stage, then the claims may not be ripe.
If that were true, we would have to vacate the order
below and our analysis would end here. See generally
U.S. Bancorp. Mortgage Co. v. Bonner Mall P’ship, 513
U.S. 18, 21-23 (1994) (vacatur proper where mootness
10 No. 01-3572
arises from external circumstances or from unilateral ac-
tion of prevailing party; or case was always moot).
The class in this case has some similarities to cer-
tain toxic tort cases, insofar as the eventual harm to
the class members was uncertain at the time the com-
plaint was filed and at the time of the settlement. But
the similarity is not complete, and in the end it tends
more to support the plaintiffs than to undermine them.
In many toxic tort cases, uncertainties abound: which
class members were exposed to the substance? who has
suffered compensable injuries already? who may never
suffer injuries? But if the risk itself is immediate, contin-
gent claims based on that risk are justiciable and are
routinely addressed both in toxic tort settlements and
in bankruptcy proceedings. In this case, parts of the con-
troversy are already unquestionably ripe: the class mem-
bers’ titles have already been slandered, and T-Cubed
will need to enter the property at least for purposes of
its surveys. The only thing (important though it is) that
is not known is whether any particular owner will be
Cable Side or Non-Cable Side (or both). Furthermore, at
the time of settlement, the slander claim was justiciable
because some harm had already occurred. This is enough
to permit the court to address the entire suit, including
the claims for trespass and the injunction. On these facts,
those claims are in no way hypothetical; their immedi-
acy and their relation to the slander claim is enough to
permit the court to address the entire controversy.
This is particularly true in light of the fact that we
are addressing a settlement. Williams v. General Elec.
Capital Auto Lease, 159 F.3d 266, 274 (7th Cir. 1998)
(“It is not at all uncommon for settlements to include a
global release of all claims past, present, and future, that
the parties might have brought against each other.”). The
fact that each individual class member did not know the
full extent of the burden she would suffer is unimportant.
No. 01-3572 11
T-Cubed claimed rights to all of the property, and the
settlement required all class members to provide T-Cubed
with an easement.
III
Satisfied that we may proceed to the merits, we turn
next to the issue of class certification. We review the dis-
trict court’s certification of a class for an abuse of discre-
tion. This is true even in the settlement context. Amchem
Products, Inc. v. Windsor, 521 U.S. 591, 630 (1997); Re-
tired Chicago Police Assoc. v. City of Chicago, 7 F.3d 584,
596 (7th Cir. 1993). For a district court to certify a class
under Rule 23(a) of the FEDERAL RULES OF CIVIL PROCE-
DURE, the class must satisfy the requirements of (1) nu-
merosity; (2) commonality; (3) typicality; and (4) representa-
tiveness.
A. Class Representative
Much of Mason’s argument centers around what she
deems conflicting subgroups that were only assigned one
representative. In Amchem, 521 U.S. at 619, and Ortiz v.
Fibreboard Corp., 527 U.S. 815, 828 n.6 (1999), the Su-
preme Court emphasized that although settlement is
relevant to class certification, the requirements of Rule
23 must still be satisfied. Thus, a district court may not
abandon the Federal Rules merely because a settlement
seems fair, or even if the settlement is a “good deal.” In
some ways, the Rule 23 requirements may be even more
important for settlement classes, for which (as this court
has put it), the district court must act almost as a fiduci-
ary of the class when approving settlements. Reynolds
v. Beneficial Nat’l Bank, 288 F.3d 277, 279-80 (7th Cir.
2002).
A class may not satisfy the requirements of Rule
23(a)(4) if the class representative does not “possess the
12 No. 01-3572
same interest and suffer the same injury as the class
members.” East Tex. Motor Freight System, Inc. v. Rodri-
guez, 431 U.S. 395, 403 (1977) (citing Schlesinger v. Reserv-
ists Committee to Stop the War, 418 U.S. 208, 216 (1974)).
This requires the district court to ensure that there is
no inconsistency between the named parties and the
class they represent. Amchem, 521 U.S. at 625. As the
Supreme Court also noted in Amchem, some classes are
more prone than others to intra-class conflicts that are
not suitable for a single class representative—even if
the single class representative believes “that the Settle-
ment serves the aggregate interests of the entire class.”
521 U.S. at 627.
Although Mason has expressed legitimate concerns
about Elzinga’s literal and figurative representation of
both sides of the track, we think she misses the mark in
the end. Her objection is premised on the idea that the
class must be viewed solely from an ex post perspective.
See John C. Coffee, Jr., Class Wars: The Dilemma of the
Mass Tort Class Action, 95 COLUM. L. REV. 1343, 1435-36
(1995). Nothing in Amchem compels such an approach.
In Amchem, the Court found the class to be overbroad
in part because it contained both exposure-only and cur-
rently injured plaintiffs. In the instant case all mem-
bers of the class are, for the most significant part of
the feared damages, “exposure only”: they have all been
slandered and many have suffered a surveying trespass,
but they are unaware if they will yet suffer trespass in-
juries from the installation of cable. Thus, if we view
Elzinga’s adequacy at the time of the settlement, he was
in the same position as all class members. T-Cubed did
not limit its claims to rights in Cable Side property; it
claimed rights to all property adjacent to and beneath
the railway.
Moreover, the fact that Cable Side and Non-Cable Side
will receive different compensation under the settlement
No. 01-3572 13
does not make it novel or unfair. See Petrovic v. Amoco,
200 F.3d 1140, 1147 (8th Cir. 1999) (holding differences
in the amount of damages do not necessarily prohibit
class certification). True, the district court could have ap-
pointed two representatives, one to represent the fu-
ture Cable Side owners and one to represent the fu-
ture Non-Cable Side owners. But we see no reason why
it was compelled to do this, since the named representa-
tive had an equal incentive to represent both sides as
long as he did not know where his property would end up.
Until the cable has been laid, no “Cable Side” exists. In the
end the Cable Side and Non-Cable Side may have diverg-
ing goals—the classes are mutually exclusive; by defini-
tion, Elzinga cannot be on both sides of the track. Cable
Side’s goal would be compensation for the conduits on
their land, while the Non-Cable Side goal would be prep-
aration for future infringement by telecommunications
groups through the formation of Class Corridor.
The district court observed that Elzinga was able to
serve as a good class representative because he would be
a “concrete working example of John Rawls’ celebrated
theory of the ‘veil of ignorance.’ ” We need not decide if
we have a pure Rawlsian situation here, or what the
legal consequences should be if we did. The important
fact is that Elzinga was not merely an uninterested neu-
tral participant, unable to serve as an effective advocate
for the class. He was someone who had a real stake in
all aspects of the case: the slander of title claims, the
surveying trespass claims, and the cable conduit tres-
pass claims. See Rand v. Monsanto Co., 926 F.2d 596, 599
(7th Cir. 1991). In light of the arguments presented to
it, the district court did not abuse its discretion in find-
ing Elzinga satisfied the requirements of Rule 23(a)(4).
(We do not comment on whether possible differences in
ownership rights, state law, or other factors should have
influenced the certification decision, as Mason does not
14 No. 01-3572
rely on these factors to challenge the propriety of the
settlement class. See, e.g., Isaacs v. Sprint Corp., 261 F.3d
679 (7th Cir. 2001) (reversing certification of a class in a
similar case).)
B. Class Corridor
Having determined that the district court did not
abuse its discretion in certifying the class, we at last
turn to the merits of the decision to approve the settle-
ment. Mason argues that the settlement is not fair in
large part because it relies so heavily on the newly
created Class Corridor. Federal courts favor settlement, so
the district court’s inquiry into the settlement structure
is limited to whether the settlement is lawful, fair, reason-
able and adequate. Isby v. Bayh, 75 F.3d 1191, 1198-99
(7th Cir. 1996). Mason must do more than just argue
that she would have preferred a different settlement
structure, as this court’s review of the settlement struc-
ture is even more narrow. We will reject the district
court’s decision to approve it only if we find an abuse of
discretion. Id.
In approving the settlement, the district court consid-
ered factors from the Manual for Complex Litigation
and Moore’s Federal Practice. It placed considerable
weight on the strength (or lack thereof) of the plaintiffs’
case on the merits. It noted the potential difficulty for in-
dividual landowners to bring this claim. Although T-Cubed
claimed that it owned all of the easements, what is more
likely is that some of the individual landowners own the
land outright, some may have granted the railroad ease-
ments strictly limited to railroad purposes, and others
may have granted broader easements to Norfolk South-
ern that it could convey immediately to T-Cubed. See
Isaacs, 261 F.3d at 681-82 (noting in a similar class ac-
tion the difficulty in identifying different conveyances
No. 01-3572 15
by and to different parties made at different times over
a period of more than a century).
Mason agrees that the settlement is probably a good
deal overall, and applauds class counsel for reaching such
an unusual and innovative settlement. Her complaint
is only that the settlement runs the risk of leaving Non-
Cable Side class members without any compensation at
all (even though, if Class Corridor succeeds, all class mem-
bers might benefit handsomely from it). We agree with
Mason that the future of Class Corridor is indeed spec-
ulative, despite what the appellees describe as a “blue-
ribbon” Board of Advisors ready to propose a Board of
Directors, and despite the fact that T-Cubed is obligated
to give it certain assets. Class Corridor will have the
burdens of any startup company—no employees, officers,
operating capital, or startup financing to meet daily
expenses. But it is unclear why this makes the Non-Cable
Side class members worse off than they would be with-
out the settlement, recalling that by definition T-Cubed
would not be buying a permanent easement from them. In
re Mexico Money Transfer Litigation, 267 F.3d 743, 748
(7th Cir. 2001) (“[O]ne must ask whether the value of re-
lief in the aggregate is a reasonable approximation of the
value of plaintiffs’ claim.”). Non-Cable Side’s only injuries
are the slander of title and the limited trespass for sur-
vey purposes. Although, under the settlement, they will
remain encumbered by a telecommunications easement
owned by Class Corridor, this unused easement is not
likely to be much different from the railroad easement
to which much of this property was subject. Therefore,
the fact that Non-Cable Side’s recovery is minimal is
unproblematic since their damages are also minimal.
Indeed the only recovery ordinarily granted for slander
is the cost of clearing the title—in this case, title to land
the individual might not even have.
16 No. 01-3572
We also think this settlement structure is different
from the one rejected by the Second Circuit in In re Agent
Orange Product Liability Litigation, 818 F.2d 179, 181 (2d
Cir. 1987). In Agent Orange, the district court devised
an independent foundation to administer funds on behalf
of class members. The Second Circuit rejected the dis-
trict court’s transfer of judicial duties to an independent
organization as “there is no principle of law authorizing
such a broad delegation of judicial authority to private
parties.” Id. at 185. Unlike the independent body the
Agent Orange court disapproved, Class Corridor is not
only a product of the settlement. It signed the settle-
ment agreement. Like the other parties to the agreement,
it will remain under the district court’s jurisdiction as
it distributes cash and shares. Moreover, issuing secu-
rities as a settlement has long been accepted. General
Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d
1074, 1082 (7th Cir. 1997). Perhaps there could have
been an even more creative settlement or, alternatively,
one that is more traditional. But that is not the question
we must resolve. The district court did not abuse its
discretion when it determined that the settlement be-
fore it (on behalf of a class from which only 250 of the
58,000 class members opted out) complied with Rule 23.
IV
We AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-29-02